Deepak Laxman Dongre vs The State Of Maharashtra And ...
2021 Latest Caselaw 11348 Bom

                                  1                    criwp 224.2021.odt

      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                 BENCH AT AURANGABAD

            CRIMINAL WRIT PETITION NO.224 OF 2021

             Deepak s/o Laxman Dongre,
             age 27 years, Occ. Business,
             R/o Mandeolgaon, Tq. Badnapur,
             District Jalna.
             At present c/o Sanjay Kisan Kuche,
             New Shubh Housing Society,
             Ayodhya Nagar, Bajaj Nagar,
             Tq. & District Aurangabad.         ...Petitioner...

             Versus

     1.      The State of Maharashtra,
             the Divisional Commissioner,
             Aurangabad Division, Aurangabad.

     2.      Sub-Divisional Magistrate, Jalna.

     3.      Superintendent of Police, Jalna.

     4.  Police Inspector, Police Station,
         Badnapur, District Jalna.            ..Respondents..
                                  ...
       Mr. R.N.Dhorde, Senior Counsel i/b Mr. R V Gore
                   Advocate for the petitioner.
       Mr. M M Nerlikar, APP for the respondents-State.
                                ...
          CORAM : V.K. JADHAV & S.G. DIGE, JJ.

...

Reserved on : 26.07.2021 Pronounced on : 20.08.2021 ...

ORDER :- ( Per V. K. Jadhav, J.)

1. By consent of the parties, heard fnally at

admission stage.

2 criwp 224.2021.odt

2. By way of this writ petition, the petitioner is

challenging the externment order externing him from

Jalna District for a period of two years dated 15.12.2020

passed by the Sub-Divisional Magistrate, Jalna under

section 56(1)(A)(B) of the Maharashtra Police Act, 1951

and the order dated 28.1.2021 passed by the Divisional

Commissioner, Aurangabad in appeal preferred under

section 60 of the Maharashtra Police Act, 1951

confrming thereby the order dated 15.12.2020 passed

by the Sub-Divisional Magistrate, Jalna in externment

proceeding.

3. Brief facts, giving rise to the present writ petition,

are as follows :-

a] On 7.7.2020 the Sub-Divisional Police Offcer,

Jalna has issued a notice to the petitioner under section

59 of the Maharashtra Police Act calling upon him to

show cause, why he should not be externed from

Districts Jalna, Aurangabad and Buldhana for a period

of two years by referring six crimes registered against

him in the notice. It has alleged in the notice that the

movements/acts of the petitioner are causing danger or

3 criwp 224.2021.odt

harm to person or property, citizens. There are

reasonable grounds for believing that the petitioner is

engaged in commission of the offences involving force or

violence. It has also alleged in the notice that the

witnesses are unwilling to come forward to give evidence

in public against him because of the terror created by

the petitioner in the area. In response to the said

notice, the petitioner had appeared before the Sub-

Divisional Police Offcer, Jalna and submitted his

detailed reply on 20.7.2020. The Sub-Divisional Police

Offcer, Jalna, however, has made a report to the Sub-

Divisional Magistrate, Jalna recommending the

externment of the petitioner.

b] The respondent No.2 Sub-Divisional Magistrate,

Jalna had issued a notice under section 56 of the

Maharashtra Police Act. The petitioner was informed

that externment was proposed against him in respect of

Jalna, Aurangabad and Buldhana Districts. In response

to the said notice, the petitioner had appeared before

the Sub-Divisional Magistrate, Jalna and submitted his

reply. By order dated 15.12.2020 the Sub-Divisional

4 criwp 224.2021.odt

Magistrate, Jalna has externed the petitioner from Jalna

District for a period of two years. Being aggrieved by the

same, the petitioner has preferred an appeal under

section 60 of the Maharashtra Police Act before the

Divisional Commissioner, Aurangabad. By judgment

and order dated 28.1.2021 the learned Divisional

Commissioner, Aurangabad has dismissed the said

appeal. Hence, this writ petition.

4. Mr. R.N.Dhorde the learned senior counsel for the

petitioner submits that, the petitioner is a registered

contractor with P.W.D. and other public authorities

since last eight years and, at present about two works

are assigned to him by PWD and other authorities after

accepting his tender for making the construction in

terms of the said contract in Jalna District. The mother

of the petitioner was also duly elected as a Sarpanch of

village Mandeolgaon, Tq. Badnapur, District Jalna. The

petitioner is from respectable family having political

background. Learned senior counsel submits that the

action was malafde at the behest of the local MLA to

settle the family dispute. There is no question of any

5 criwp 224.2021.odt

disturbance of law and order or threatening to any

witnesses. Alongwith the replies, the petitioner

submitted affdavit of various respectable persons

pointing good conduct of the petitioner in public life and

other documents.

5. Learned senior counsel Mr. Dhorde has given

certain instances, which can be summarized as below to

demonstrate as to how the externment proceeding came

to be initiated at the behest of the local MLA, who

happened to be his maternal uncle.

i] In the year 2013, maternal uncle of the petitioner namely Narayan Kuche has made a declaration before his relatives gathered for Rakshabandhan at his residence that, his daughter, who was then studying in 9 th standard, would be marrying to the petitioner.

ii] In the year 2014, in the assembly elections, said maternal uncle of the petitioner namely Narayan Kuche elected as MLA Badnapur for a term till 2019. The petitioner alongwith his family members has worked hard for his success in the election.

iii] Said maternal uncle of the petitioner Narayan Kuche, again given ticket from BJP Party. In that election, petitioner allegedly helped him by giving Rs.40.00 lakhs for election expenses and also campaigned vigorously. Said Narayan Kuche won the election by huge margin of votes.

                                    6                    criwp 224.2021.odt



            iv.    Meanwhile, said daughter of his maternal uncle

Narayan Kuche passed 12th standard and admitted in MBBS College.

v. On 10.12.2019 the petitioner was in need of money as he wanted to fll in the tender and undertake further work, therefore, he had demanded Rs.40 lakhs given to his maternal uncle for election expenses. At that time, his maternal uncle Narayan Kuche told him that he would not pay Rs.40 lakhs and also he would not marry his daughter with him.

vi. Thereafter, said Narayan Kuche alongwith his brother Devidas Kuche have tried to implicate the petitioner in a false case by using one Varsha Bankar. The petitioner has lodged a complaint against said Varsha Bankar with Chandanzira Police Station, Jalna. In the said complaint, statement of Varsha Bankar was recorded, wherein, she had admitted that she was advised, to make phone calls, messages, and photographs to the petitioner, by Devidas Kuche.

vii. On 2.6.2020 petitioner was suddenly arrested by Badnapur Police Station, without having any reason under section 151 of the Cr.P.C. at the instance of his maternal uncle MLA Narayan Kuche. He was produced before the Magistrate on the same day. However, the Magistrate has released the petitioner.

viii. The petitioner has lodged the complaint against his maternal uncle MLA Narayan Kuche, Devidas Kuche and said Varsha Bankar and under the orders of this court in writ petition no.583 of 2020, crime no.238 of 2020 came to be registered against them. However, MLA Narayan Kuche had fled writ petition no.742 of 2020 challenging crime no.238 of 2020 and

7 criwp 224.2021.odt

writ petition was allowed to his extent and this court has quashed the FIR.

ix. The moment crime no.238 of 2020 was registered against MLA Narayan Kuche, his brother Devidas Kuche and Varsha Bankar, on 7.7.2020 the Sub Divisional Police Offcer has issued a notice under section 59 of the Maharashtra Police Act for externment.

6. The learned senior counsel submits that, said

action under section 56 of the Maharashtra Police Act

has been taken with malafde intention at the behest of

MLA Narayan Kuche, who is maternal uncle of the

petitioner and his brother Devidas Kuche to harass the

petitioner and to exploit his career as a contractor.

Learned senior counsel submits that, roznama of the

proceedings under section 56 before the Sub-Divisional

Magistrate, Jalna indicates that, matter was being

prolonged for the reason of election of the village

panchayat as voters' list was declared on 1.12.2020 and

election programme was published on 11.12.2020.

Election programme of the village panchayat was

published including the village of the petitioner i.e.

Mandeolgaon. Learned senior counsel submits that

those proceedings were kept deliberately pending to

8 criwp 224.2021.odt

prevent the petitioner from contesting the election of the

village Panchayat and, suddenly the impugned order

came to be passed by the Sub-Divisional Magistrate,

Jalna on 15.12.2020 externing the petitioner from Jalna

District while the election was in progress.

7. Learned senior counsel submits that, six cases

have been referred in the notice under section 59 of the

Maharashtra Police Act issued by the Sub Divisional

Police Offcer, Jalna and also the notice issued by the

Sub Divisional Magistrate, Jalna, so far as crime no.367

of 2013 is concerned, the petitioner has been acquitted.

The learned senior counsel submits that, in connection

with the crime no.247 of 2018, the petitioner has been

falsely implicated being the cousin brother of the

original accused no.1 in the said crime. In connection

with crime no.378 of 2018 the petitioner came to be

released on anticipatory bail by this Court in criminal

application no.1433 of 2018 on the ground that the

petitioner was not present at the time of the incident on

the spot. Learned senior counsel submits that in crime

no.15 of 2020 the petitioner has been falsely implicated

9 criwp 224.2021.odt

as a plan to trap the petitioner in Varsha Bankar's case

was not succeeded. It is submitted that in crime no.215

of 2020 the complainant is none else, but the relative of

the Kuche family. Chapter case no.2 of 2020 was

initiated under the political pressure of Narayan Kuche.

Learned senior counsel submits that, petitioner has

explained each and every case in reply to the notice in

paragraph no.4 alongwith the relevant documents.

8. Learned senior counsel submits that, on

19.8.2020 respondent no.2 had issued a notice under

section 56 of the Maharashtra Police Act, 1951 to the

petitioner without considering the reply of the petitioner.

In response to the notice dated 19.8.2020, petitioner has

submitted his reply dated 25.8.2020 before the

respondent no.2, wherein it has been specifcally

pointed out that, though the petitioner has expressed

his desire to examine the witnesses, but, still that

opportunity was not given to the petitioner. Learned

senior counsel submits that, there is violation of the

principles of natural justice. Further, copy of the

inquiry report was also not served on the petitioner.

10 criwp 224.2021.odt

Learned senior counsel submits that, the details about

information furnished by the witnesses was also not

disclosed. Petitioner has been falsely implicated under

the political pressure.

9. Learned senior counsel submits that, the Sub-

Divisional Magistrate, Jalna has not recorded any

fnding in the externment proceeding to the effect that

the harm caused by the petitioner to a person in

connection with the crime registered against him would

cause alarm, danger or harm to the general public or a

considerable section of the general public. Learned

senior counsel submits that, there is no live-link

between the offences relied upon in a show cause notice

and the impugned order. Learned senior counsel

submits that, though the alleged acts in terms of the

crime registered against the petitioner are restricted to

Taluka Badnapur, the petitioner came to be externed

from the entire District, which is an excessive order.

Learned senior counsel submits that, the authorities

below have failed to consider the ratio laid down by the

Division Bench of this Court in a case of Prashant

11 criwp 224.2021.odt

Bodkhe Vs. State of Maharashtra in writ petition no.567

of 2019 dated 27.6.2019.

10. The learned senior counsel in order to

substantiate his contentions, placed his reliance on the

following judgments :-

i. Balu Shivling Dombe Vs. Divisional Magistrate, Pandharpur and another reported in 1969 Cri.L.J. 1341.

ii. Kanifnath Radhakishan Popalghat Vs. State of Maharashtra and others reported in 2017 (2) Bom.C.R. (cri) 359.

iii. Yeshwant Damodar Patil Vs. Hemant Karkare, Dy.

Commissioner of Police and another reported in 1989 (3) Bom.C.R. 240.

iv. Ravi Raju Bhalerao Vs. State of Maharashtra and others reported in 2017 DGLS (Bom) 1275 : 2018 (1) Bom.C.R. (Cri) 609.

v. Ravi Ramdas Aher Vs. State of Maharashtra reported in 2018 DGLS (Bom) 1921.

vi. Shanno @ Shamali Jafar Pathan Vs. State of Maharashtra reported in 2017 DGLS (Bom) 2092.

vii. Rauf Khan Wahab Khan Patel Vs. State of Maharashtra reported in 2018 DGLS (Bom) 1106.

11. The learned APP Mr. Nerlikar submits that,

impugned orders came to be passed after giving an

opportunity of being heard to the petitioner and also

considering all the facts, circumstances and legal

provisions. The learned APP submits that the proposal

dated 5.6.2020 for externing the petitioner was received

12 criwp 224.2021.odt

through the offce of the Superintendent of Police, Jalna

to the respondent no.2 on 11.6.2020. Thus, after

receiving the said proposal, respondent no.2 has

appointed the Sub Divisional Police Offcer as Enquiry

offcer in terms of the section 59 clause-1 of the

Maharashtra Police Act vide order dated 17.6.2020.

Thereafter, the Sub Divisional Police Offcer/inquiry

offcer has issued notice under section 59 of the

Maharashtra Police Act, 1959 to the petitioner for

externment on 7.7.2021. The petitioner has fled his

reply to the said notice. After hearing the petitioner, the

Sub Divisional Police Offcer/inquiry offcer has

submitted his report dated 25.7.2020 to the Sub-

Divisional Magistrate/respondent no.2, which is

received in the offce on 29.7.2020. The Sub Divisional

Police Offcer/inquiry offcer has recommended that the

petitioner should be externed for two years from Jalna,

Aurangabad and Buldhana District. On 19.8.2020 the

Sub-Divisional Magistrate, Jalna has issued notice to

the petitioner for his appearance and his explanation on

25.8.2020. On 25.8.2020 the petitioner had appeared

before the respondent no.2-Sub-Divisional Magistrate,

13 criwp 224.2021.odt

Jalna alongwith his lawyer and submitted his written

statement. Matter was adjourned for 18.9.2020 for

further hearing. From 18.9.2020 till 7.12.2020 matter

was adjourned for one or another reason. Finally, on

7.12.2020 the matter was heard by the respondent

no.2/Sub-Divisional Magistrate, Jalna and it was

reserved for the order. Learned APP submits that

respondent no.2 has followed the procedure prescribed

by law and passed the impugned order.

12. Learned APP submits that since 2013 onwards,

there were fve crimes registered against the present

petitioner and one chapter case was registered against

him in the year 2020. The petitioner is having criminal

antecedents. Learned APP submits that, in connection

with the crime no.367 of 2013 the petitioner was

acquitted, however, so far as crime no.247 of 2018 is

concerned, the offence was registered against the

petitioner for having committed the offences punishable

under sections 354, 354-A, 323, 504, 506, 509 r/w 34

of the Indian Penal Code. In crime no.247 of 2018, the

complainant is a lady Police offcer and after attending

14 criwp 224.2021.odt

her duties, she went to the market for purchasing the

groceries. When she was returning to the police

quarters, one car bearing registration No.MH-20/BY-

2889 has wrongly overtaken her. Initially, she felt that

that has been done unintentionally, however, the driver

of the said car again reduced the speed and he was

looking at her from the side mirror. Thus, the

complainant has given him a signal to stop the vehicle.

The petitioner was driving the said vehicle. He has not

only threatened her but grabbed her hairs and pushed

her on the heap of the mud by the side of the road. He

told her that, he is the Sarpanch of the village and

abused her in a very flthy language. The petitioner has

allegedly mentioned his political background also.

Learned APP also submits that, so far as crime no.378

of 2018 is concerned, same was registered against the

petitioner for the offences punishable under sections

307, 325, 323, 341, 201, 120-B, 504, 506, 507 r/w 34

of the Indian Penal Code. It has been alleged in the

complaint that, it has been revealed during the

investigation of the said crime that, at the instance of

the local MLA, the petitioner and two others had

15 criwp 224.2021.odt

assaulted the informant by iron rod and sharp weapons.

Learned APP submits that, charge-sheet is also

submitted in connection with the crime. Learned APP

submits that, at the initial stage when the investigation

was in progress, with certain observations this Court

has released the petitioner on bail, the same may not be

signifcant. Learned APP submits that crime no.15 of

2020 came to be registered against the petitioner for

having committed the offences punishable under

sections 354, 354-A, 354-D, 509, 506 of IPC. It has

been alleged in the said complaint that, the petitioner

had been to the Hostel of the complainant and after

giving sexual expressions insisted her to sit in his

vehicle. Learned APP submits that, crime no.215 of 2020

came to be registered against the petitioner for having

committed the offence punishable under sections 509,

501, 506 of the Indian Penal Code and sections 67, 67A

of the Information Technology Act, 2000. It has alleged

in the said complaint that, the petitioner had given

threats to the informant of crime no.15 of 2020 for

withdrawing the said complaint. The petitioner has also

kept his whatsapp status mentioning therein that the

16 criwp 224.2021.odt

informant in crime 15 of 2020 is his wife. Learned APP

submits that, the informant in the said case happened

to be the daughter of the local MLA and she is

unmarried.

13. The learned APP submits that, during the inquiry,

in-camera statements of three witnesses came to be

recorded on 5.6.2020, in which witnesses have stated

that the petitioner is a very dangerous person and due

to his fear, no one could dare to fle any complaint

against him. He also alleged that the petitioner has

given threats to them of dire consequences.

14. Learned APP submits that there is a live-link

between the registration of crime and the proposal

submitted to the offce of the respondent no.2. The

petitioner is a dangerous person. He has no respect of

the rule of law. The respondent no.2 Sub-Divisional

Magistrate, Jalna has rightly passed the order of

externment. Learned APP submits that the appellate

authority has considered all the relevant provisions.

17 criwp 224.2021.odt

15. Learned APP submits that, so far as the show

cause notice issued to the petitioner is concerned, only

general nature of material allegations are required to be

mentioned and nothing more to be stated. It is not

necessary to refer to details or particulars of in-camera

statements of the witnesses recorded by the externing

authority. Learned APP submits that, so far as the

excessive area as submitted by the learned senior

counsel is concerned, it all depends upon the facts and

circumstances of the case, which need be vetted

through the judicial process of drawing legitimate

inference. Learned APP submits that the respondent

no.2/Sub-Divisional Magistrate, Jalna has applied mind

to the material placed on record. However, the refection

of the application of mind in the externment order in a

specifed manner would not be necessary. Learned APP

submits that, the impugned order discloses that

subjective satisfaction has been reached by considering

the material available on record. Learned APP submits

that, the authorities have considered the entire Jalna

District by giving due weightage to the activities of the

18 criwp 224.2021.odt

petitioner and also considering the interconnection

between the areas of the Talukas in the district.

16. Learned APP in order to substantiate his

contentions placed reliance on following cases :-

i. State of NCT of Delhi Vs. Sanjeev @ Bitto reported in 2005 DGLS (SC) 320.

ii. Sumit s/o Ramkrishna Maraskolhe Vs. Deputy Commissioner of Police, Nagpur and another reported in 2019 ALL MR (Cri) 1961 (F.B.).

17. The learned senior counsel by pointing out the

various instances as detailed in the foregoing

paragraphs has vehemently submitted before us that

the order impugned is malafde order at the behest of

local MLA, who happened to be the maternal uncle of

the petitioner for settling the score against the petitioner

due to some family dispute. We are not convinced by

the submissions made on behalf of the petitioner since

the learned senior counsel has mostly argued on the

personal grudge, which allegedly resulted into

externment order passed against the petitioner, we have

considered the background, carefully. Initially, the

petitioner was a loyal political worker of his maternal

19 criwp 224.2021.odt

uncle Narayan Kuche. It appears that, the petitioner

was the active political worker and he has treated

himself as the kingmaker as because of his efforts, his

maternal uncle got elected as a MLA. The petitioner has

also allegedly paid huge amount to his maternal uncle

Narayan Kuche for election expenses.

18. We have carefully gone through the crimes shown

against the petitioner in the externment proceedings.

So far as the crime no.247 of 2018 is concerned, it is

serious in nature. The petitioner alleged to have

committed the offence punishable under sections 354,

354-A, 323, 504, 506, 509 r/w 34 of the Indian Penal

Code. The informant is a police offcer and the

petitioner by expressing his political background has not

only assaulted her, but also outraged her modesty at

public place. So far as crime no.378 of 2018 is

concerned, though this Court had granted anticipatory

bail with certain observations on the basis of the

statement made by the Investigating offcer, however, it

appears that, the petitioner is the mastermind of the

said crime, which is registered for the serious offences

20 criwp 224.2021.odt

like 307, 325, 323, 341, 201, 120-B, 504, 506, 507 r/w

34 of the Indian Penal Code. It has been alleged that, at

the instance of the local MLA, accused persons had

assaulted the informant by iron rod and sharp weapon.

Further, crime no.15 of 2020 is registered against the

petitioner for the offence punishable under sections 354,

354-A, 354-D, 509, 506 of the Indian Penal Code. The

informant is one Sayali Narayan Kuche (daughter of the

local MLA). She was taking education in the Indian

Institute of Medical Science and Research MBBS

College, (Noor Hospital), Warudi in Second Year. On

14.1.2020 in the evening at about 5.00 p.m. when she

was taking walk on the walking track of the hostel, the

petitioner went their in his car, given her sexual

expressions and insisted her to sit in his vehicle. That

vehicle was without registration number. After

sometime, when she was proceeding towards the

Canteen to meet her girl friend Khushbu, the petitioner

had stopped his car, caught hold off her hand and

forcibly tried her to drag in the car. Even, thereafter, the

petitioner has not only threatened the uncle of the

informant Sayali in reference to the said crime, but also

21 criwp 224.2021.odt

kept his whatsapp status mentioning therein that said

Sayali is his wife.

19. In our considered opinion, there is a live-link

between the registration of the crime and the proposal

submitted to the offce of the respondent no.2. We have

also carefully gone through the original record,

particularly, three in-camera statements of the

witnesses. They are not willing to come forward to give

the evidence or to fle the complaint against the

petitioner by reason of apprehension to their life.

20. In a case of Balu Shivling Dombe Vs. The

Divisional Magistrate, Pandharpur and another (supra),

relied upon by the learned senior counsel for the

petitioner, the Sub-Divisional Magistrate, Jalna has

relied upon two statements. According to those two

witnesses, they had no courage to give evidence against

the petitioner. On the basis of the statements of those

two witnesses, the Sub-Divisional Magistrate, Jalna

exterened the petitioner therein with the observations

that there will be no peace in the localities where those

two witnesses are staying and the maintenance of law

22 criwp 224.2021.odt

and order in these localities will become diffcult. In the

backdrop of these facts, the Division Bench of this

Court has observed that an order of externment cannot

be passed under clause (a) merely on a fnding that the

movement or acts of a person are causing or are

calculated to cause alarm, danger or harm to one or two

individuals in the locality.

In the instant case, however, the facts are

altogether different. Externment order is not merely

based upon in-camera statements of certain witnesses,

however, it is also based upon the live-link between the

crime registered against the petitioner and the

impugned order of externment.

21. In a case Kanifnath Radhakishan Popalghat Vs.

State of Maharashtra and others (supra), relied upon by

the learned senior counsel for the petitioner, wherein,

the Division Bench of this Court has quashed the

externment order on two grounds. Firstly, the externing

authority did not record subjective satisfaction or

reached to the defnite conclusion that due to fear of

petitioner, witnesses are not coming forward to give

23 criwp 224.2021.odt

evidence against the petitioner in public by reason of

apprehension on their part as regards safety or their

person or property, and, consequently, the impugned

order also suffers from not demonstrating the live-link

between the offences relied upon in show cause notice

and impugned order.

In the instant case, the Sub Divisional Police

Offcer, Jalna has submitted his inquiry report dated

25.7.2020 stating therein that the petitioner is a very

ferocious person and is involved in number of crimes

like house tress-pass, voluntarily causing hurt by

dangerous weapons, assault or criminal force to woman

with an intent to outrage her modesty, sexual

harassment, stalking, intent to provoke breach of peace,

criminal intimidation, criminal intimidations by

anonymous communication, etc., and involved in other

serious offences of I.T. Act, accordingly, strongly

recommended to extern the petitioner from three

districts i.e. Jalna, Aurangabad and Buldhana for a

period of two years. The Sub-Divisional Magistrate,

Jalna in the impugned order has observed that the Sub

Divisional Police Offcer/inquiry offcer has followed the

24 criwp 224.2021.odt

proper procedure in the inquiry. The learned Sub

Divisional Magistrate, Jalna has also dealt with the

grounds raised by the petitioner that he was not given

an opportunity to lead the evidence. The Sub-Divisional

Magistrate, Jalna has also discussed all the crimes and

observed that all sequence of the cases registered

against the petitioner clearly demonstrates the activities

of the petitioner as dangerous in the area of the District

Jalna and he will also continue in future. The learned

Sub Divisional Magistrate, Jalna has also referred in-

camera statements of 'A" and 'B' who are not willing to

come forward in public.

In the instant case, the Sub-Divisional Magistrate,

Jalna has assigned the reasons and also demonstrated

the live-link between the offences relied upon in the

show cause notice and the impugned order. The learned

Sub-Divisional Magistrate, Jalna has recorded the

satisfaction and reached to the defnite conclusion.

24. In a case of Ravi Ramdas Aher Vs. State of

Maharashtra (supra), relied upon by the learned senior

counsel for the petitioner, the Division Bench of this

25 criwp 224.2021.odt

Court has observed that externment order is excessive

in as much as the petitioner alleged prejudicial activities

mentioned in the show cause notice are confned to

Kopargaon Taluka of Ahmednagar District, however, the

petitioner is externed from three Districts. This Court

has, therefore, considered the order as an excessive

order. The learned senior counsel has also placed his

reliance on a case Shanno @ Shamali Jafar Pathan Vs.

State of Maharashtra (supra), wherein, similar view is

expressed on the excessive area.

25. In the instant case, in addition to police station

Badnapur, crime also found to be registered at Police

Station Chandanzira, Kadim Jalna and also in Taluka

Jalna. So there is no material available to indicate that

the learned Sub-Divisional Magistrate, Jalna has

considered the excessive area.

26. In a case Rauf Khan Wahab Khan Patel Vs. State

of Maharashtra (supra), relied upon by the learned

senior counsel for the petitioner, the Division Bench of

this Court, in the facts of the said case alongwith other

grounds, considered the ground to brand a person as

26 criwp 224.2021.odt

habitual criminal and in the backdrop of the said

ground, the Division Bench has observed that both the

authorities have not considered the fact that the

petitioner is not convicted in any of the cases registered

against him.

27. In a case Sumit s/o Ramkrishna Maraskolhe Vs.

Deputy Commissioner of Police, Nagpur and another

(supra), relied upon by the learned APP, the following

two questions have been referred to the Larger Bench,

which reads thus :-

3.F] The Division Bench, however, having been confronted with some divergent views expressed in some of the Judgments rendered by the other coordinate Benches, such as in the cases of Pappu Mishra vs. Union of India, 2017 ALL MR (Cri.) 1, Sanjay Ruptakke vs. State, 2017 ALL MR (Cri.) 3983, Sayyad Jafar vs. Divisional Commissioner, 2017 ALL MR (Cri.) 4303 found itself in a dilemma and, therefore, formulating two questions for their answer by a larger Bench, passed the referral order. The questions framed are thus :-

(1) Where the activities of externee are confined to specific area of the local limits of the jurisdiction of a police station in a district but the order of externment extends to the entire district, rural areas and even beyond the district or districts (irrespective of the fact that it is contiguous or not) wheether such an order needs to show the existence of material -

(a) that a larger or additional area so chosen or selected is intimately connected with the actual area of the activities of the externee due to improved or common means of transport and communication system, (b) that the facts or the material warranting externment from a larger or additional area or neighbouring area exist, and

(c) that the externing authority has applied its mind to the factors (a) and (b) while passing an order of externment?

27 criwp 224.2021.odt

(2) Whether it is necessary to state in the show cause notice the details of in-camera statements recorded by the externing authority to reach to the satisfaction that the witnesses are not coming forward to give evidence or depose in public against the proposed externee due to fear of alarm, danger or harm to their person or property ?

28. The Full Bench of this court, after referring the

various cases on this point, in paragraph no.26 of the

judgment has recorded fnding to question no.1 as

follows :-

26. The discussion made so far would lead us to record our conclusions as follows :-

(i) The externment order directing externment of a person from a much larger area than the one of his illegal activities, must be based upon some material which provides an objective criteria to the authority for reaching a subjective satisfaction regarding the need for externing a person to an expansive area though it may not always directly or elaborately refer to that material in the order itself, as it all depends upon facts and circumstances of the case which need be vetted through the judicial process of drawing of legitimate inference following the law of Pandharinath and Sanjeev @ Brittoo (supra).

(ii) The order of externment need not necessarily refer to the details of the material considered by it so as to show independently that larger or additional area chosen by it is intimately connected with the actual area of the activities of the externee due to improved or common means of transport and communication.

(iii) Application of mind to the material present on record by the authority passing the externment order is necessary, but any reflection of application of mind in the externment order in a specific manner, as if to pass a reasoned order, would not be necessary. It would be enough if the order discloses that the subjective satisfaction has been reached by considering the material available on record and it would and should be a matter of legitimate inference that the authority, while considering materials to satisfy itself about the need for and extent of externment to be ordered, also considered all the options available to it and selected in it's wisdom the one which it thought to be most appropriate. This would also mean that authority, in this way, can select a larger area for being covered under it's externment order, as one of the options

28 criwp 224.2021.odt

available to it, whether such larger area has within it contiguous or inter-connected or intimately connected pockets of areas or not.

Question no. (1) having three aspects enumerated in clauses

(a), (b) and (c), is answered specifically through the three conclusions made as above.

So far as question no.2 is concerned, in paragraph

no.45, the Full Bench has observed the same in the

following manner :-

"45. Having comprehended clearly the issues central to second question of reference, it is time for us to formalize the answer to it and it is as follows :

It is not necessary to state in the show-cause notice the details or the particulars of in-camera statements recorded by the externing authority and only the general nature of material allegations is all that is necessary to be said in the show-cause notice. In other words, it is sufficient compliance with the requirement of law if the show cause notice refers in general terms to the material allegations against the proposed externee and when the action is under Section 56 (1) (b) of the Act, 1951 it also generally says that the witnesses are not coming forward to give evidence in public against the proposed externee due to fear, alarm, danger or harm to the person or property, as the case may be."

29. In view of the answers recorded by the Full Bench

to the aforesaid issues/questions, we are satisfed that

the impugned order is based upon the material, which

provides an objective criteria to the authority for

reaching a subjective satisfaction regarding the need for

externing a person to an expansive area though it may

not always directly or elaborately refer to that material

in the order itself. It is not necessary that the order of

29 criwp 224.2021.odt

externment should refer the details of the material

considered by the authority so as to show independently

that larger or additional area chosen by it is intimately

connected with the actual area of the activities of the

externee due to improved or common means of

transport and communication. Application of mind to

the material present on record by the authority passing

the externment order is necessary. We are satisfed that

the respondent no.2 Sub-Divisional Magistrate, Jalna

has passed the impugned order by applying the mind.

The impugned order discloses that subjective

satisfaction has been reached by considering the

material available on record. Thus, the inference could

be drawn that while considering the materials to satisfy

about the need for and extent of externment to be

ordered.

30. In view of the discussion above and considering

the ratio laid down by the Full Bench while answering

the referred questions, we fnd that the impugned orders

calls for no interference. We accordingly proceed to pass

the following order.

                                     30                   criwp 224.2021.odt

                                 ORDER

1. Criminal writ petition is hereby dismissed.

2. Criminal writ petition accordingly disposed off.

        ( S.G.DIGE, J. )                       ( V.K. JADHAV, J. )
                                     ...

     aaa/-